Monday, 28 March 2011

On 22 March 2011 the United Nations Human Rights Council (the Council) held a general debate on follow-up and implementation of the Vienna Declaration and Programme of Action (VDPA). The VDPA reaffirms core principles of the international human rights framework, including the universality of human rights and non-discrimination. The highlight of the meeting was a joint statement delivered by Colombia on behalf of 85 States on ending acts of violence and related human rights violations based on sexual orientation and gender identity.

85 is the highest number of States ever signing on to a statement of this kind. A joint NGO statement, with 119 signatories, including ISHR, commended States for the initiative and noted in particular the broad cross-regional support for the statement.

The debate also saw vital participation of networks of National Human Rights Institutions (NHRI) from all regions, including a cross-regional joint statement of NHRIs in support of the statement by the group of States. It emphasised that NHRIs all over the world are advocating the rights of LGBTI people regardless of the different cultural backgrounds they are working in. The statement further called on the Council to hold a panel discussion on the protection of human rights of LGBTI people.

The ensuing debate focused predominantly on this issue and prompted some States, in particular Pakistan on behalf of the Organisation of the Islamic Conference (OIC) to ‘strongly condemn systematic efforts by a group of States to introduce the notion of “sexual orientation” in the United Nations system in general and in the universally agreed human rights framework in particular’.

The joint statement called on States to ‘take steps to end acts of violence, criminal sanctions and related human rights violations committed against individuals because of their sexual orientation or gender identity [...]’. The Council and its mechanisms should play their part in addressing these issues in accordance with the Council’s mandate which includes the promotion and protection of human rights for all without discrimination. The statement also welcomed positive developments towards the recognition of the rights of LGBTI people that have taken place in all regions of the world in recent years. The group of States acknowledged that issues of sexual orientation and gender identity remain sensitive but they trusted ‘that there is common ground in our shared recognition that no-one should face stigmatisation, violence or abuse on any ground’.

The current joint statement followed a statement on behalf of 66 States in the General Assembly in 2008 and a statement supported by 54 States in the Council in 2006. This time the statement enjoyed the support of a record number of 85 States from all regional groups. Most notably, this included the support of South Africa.

In the preceding negotiations on the draft the South African delegation had made a last minute call to include reference to an inter-governmental working group to clarify the meaning of sexual orientation in the context of international law. While this proposal did not find its way into the statement, South Africa eventually joined the statement. The resolution tabled by South Africa on the establishment of the intergovernmental working group to exclusively discuss sexual orientation remains on the table, although there are indications it may be deferred to the June session.

During the debate South Africa took the floor to reiterate its support for the statement. However, the delegation also asserted that the statement was procedurally flawed and that the process had not been sufficiently inclusive and transparent, a charge vehemently denied by the supporters of the statement.

Hungary (on behalf of the European Union) stated that the universal nature of human rights included the responsibility to ensure non-discrimination against LGBTI people. Similarly, the US reaffirmed that the protection against human rights violations on the grounds of sexual orientation and gender identity was nothing new but already required under international human rights standard.

In response to the joint statement, Nigeria (on behalf of the African Group) argued that the concepts of sexual orientation and gender identity were still undefined, and that African leaders had decided during the Kampala summit in July 2010 that they would not accept the integration of an undefined concept into international law.

Therefore, the African Group opposed the call on the Council to give attention to issues of sexual orientation and gender identity and criticised the ‘haphazard and disjointed manner’ in which special procedure mandate holders address these issues. In its national capacity Nigeria expanded further on this theme, stating that the concept of ‘sexual orientation’ goes against ‘everything Africa stands for’ since it touches upon the African notion of women, children and the family. NIgeria also blamed the special procedures for reducing Africa’s problems only to issues of sexual orientation and gender identity, and thereby overlooking the problems related to poverty and health.

Similarly, Pakistan (on behalf of the OIC) asserted that the joint statement was an attempt ‘to shift the focus from the real issues that constitute marginalisation and exclusion’. It also argued that notions of sexual orientation and gender identity had no legal foundation in any international human rights instrument, and noted with concern ‘attempts to create “new rights” or “new standards”, by misinterpreting the Universal Declaration and international treaties to include such notions that were never articulated or agreed to by the general membership’. The OIC furthermore described advocacy for decriminalisation of same-sex relations as an intervention in the domestic affairs of States, violating the principle of non-intervention contained in the United Nations Charter. The Holy See made an apparent call for criminalisation of same-sex relationships, arguing that the concept of sexual orientation in international law was a reference to feelings, not behaviour. While persons should not be deprived of their human rights on the grounds of their sexual orientation, it argued certain types of sexual behaviour should be punished by law.

The Russian Federation expressed concern that attempts to create a ‘new category of persons’ could lead to a weakening of protection of other vulnerable categories. Other States made reference to the need to prioritise the right to development (Algeria, Iran), women’s rights (Indonesia), and the rights of the child (Azerbaijan). While reiterating the ‘universality, indivisibility, and interdependence’ of human rights, Algeria stressed the importance of taking regional differences and traditional values into account.

Another aspect of the debate was the resolution introduced by the Russian Federation on traditional values and human rights. The controversial resolution argues that there are traditional values common to all cultures that contribute to the advancement of human rights, while failing to clearly define the concept of ‘traditional values’, and giving a central role to the family in promoting those values. During the debate the notion of traditional values was firmly rejected by the EU who regarded it as a ‘discourse that is used to undermine the universality of human rights’. In contrast, Costa Rica (on behalf of GRULAC) argued that all cultures share a common set of values that contributed to the development of the Universal Declaration of Human Rights (UDHR). The resolution, that tasks the Advisory Committee with conducting a study on how a better understanding of traditional values can contribute to the advancement of human rights, is likely to be put to a vote. ISHR delivered a statement expressing concern about the harmful effects of this initiative, and calling on States to ensure that the principle of universality is upheld.

Despite the concerns voiced, the Council adopted the resolution by a vote of 24 in favour and 14 against on 24 March 2011.